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HomeMy WebLinkAboutT-5935 - Agreement/Covenant - 4/9/2008 (2) WHEN RECORDED MAIL TO: City Clerk City of Fresno 2600 Fresno Street Z Fresno, CA 93721-3603 04/02/2008,20080047976 O U W cn W NO FEE-Government Code 6103 J CL CITY OF FRESNO Planning and Development Department Building and Safety Services Division AGREEMENT FOR EARLY ISSUANCE OF MODEL HOME BUILDING PERMITS FOR TRACT NO. 5935, PHASE 2 OF VESTING TENTATIVE MAP NO. 5901 Agreement for Early Issuance of Model Home Building Permits Tract No. 5935 Page 2 THIS AGREEMENT is made this Z— day of L- 20l , by and between the CITY OF FRESNO, a Municipal Corporation, hereinafter referred to as the"City,"and BN 5312 L.P., a California Limited Partnership, hereinafter referred to as the"Developer,"without regard for number or gender. RECITALS A. The Developer owns real property situated in the County of Fresno, State of California, hereinafter referred to as the "Subject Property" and more particularly described in EXHIBIT "A,"attached hereto and made a part of this Agreement, which is generally located north of East Garland Avenue between North Locan Avenue and North Hornet Avenue. B. The Developer hereby warrants that any and all parties having record title interest in the Subject Property which may ripen into a fee have subordinated to this instrument; and all such instruments of Subordination, if any, are attached hereto and made apart of this instrument. C. The Developer has filed and the City of Fresno has approved,Vesting Tentative Map No. 5901 on the Subject Property. Additionally, the Developer has filed Final Maps of Tract Nos. 5901 and 5935, Phases 1 and 2, respectively, of said Vesting Tentative Map No. 5901, hereinafter referred to as the "Final Map" pursuant to said Tentative Map, which upon satisfaction of all conditions of approval for each Final Map, each Final Map will be presented for City Council action. D. The Developer is requesting the issuance of building permits to construct model homes on the Subject Property, more particularly on that portion to be subdivided pursuant to said Final Map of Tract No. 5901, prior to the approval and recording of the Final Map of said Tract Nos. 5901 and 5935. E. Such building permits will be issued and inspected in accordance with City of Fresno codes and regulations Agreement for Early Issuance of Model Home Building Permits Tract No. 5935 Page 3 F. The Developer has filed building plans and has requested thatthe City issue building permits for model homes on the portion of the Subject Property which correspond to the lots to be created by said Final Map of Tract No. 5901 as follows: Lot 1 7484 East Garland Avenue Lot 2 7476 East Garland Avenue Lot 3 7468 East Garland Avenue Lot 4 7460 East Garland Avenue Lot 5 7454 East Garland Avenue Lot 6 7450 East Garland Avenue Lot 7 7444 East Garland Avenue Lot 8 7438 East Garland Avenue Lot 9 7434 East Garland Avenue Lot 10 7428 East Garland Avenue Lot 11 7420 East Garland Avenue Lot 12 7412 East Garland Avenue Lot 13 7406 East Garland Avenue Lot 19 7370 East Garland Avenue Lot 20 7364 East Garland Avenue Lot 21 7356 East Garland Avenue G. The City is unwilling to permit such construction or inspect same without assurance that no vested rights or entitlements will be conferred by the early issuance of such model home building permits or by the acceptance of such construction upon inspection. H. The Developer acknowledges that such improvements will be accepted by the City only if they comply with all applicable City standards, codes, and ordinances, provided, and in no case shall acceptance of such improvements be complete until the Final Map of Tract No. 5901 is approved by the Fresno City Council and duly recorded. I. Developer understands and acknowledges that the improvements described herein shall be subject to acceptance or rejection by the City upon inspection thereof, and upon the terms Agreement for Early Issuance of Model Home Building Permits Tract No. 5935 Page 4 and conditions contained herein. J. It is extremely important to the Developer that the building permits for the model homes be issued as soon as possible. K. The action for the approval of the Final Map by the City of Fresno is not expected to be finalized for up to one hundred twenty (120) days. AGREEMENT In consideration of the foregoing,the early issuance of building permits for the model homes and the promises and covenants herein contained, the undersigned agree: 1. Should the City of Fresno fail to approve the Final Map of Tract No. 5901 for any reason within one hundred twenty (120) days of the execution of this Agreement, the Developer shall, within ten (10) days after written notice from the Director of the Planning and Development Department of the City of Fresno, remove from the Subject Property any improvements or construction placed or constructed pursuant to the building permits issued for the model homes; and Developer shall restore the Subject Property to its prior condition. 2. Should the Developer fail to comply with the provisions of Paragraph 1 above, the City of Fresno, or any of its duly authorized officers, employees or agents, are unconditionally permitted to enter upon the Subject Property and accomplish such removal and restore the Subject Property to its prior condition. 3. Should the City of Fresno cause such removal under the provisions of Paragraph 2 hereof, the Developer shall hold harmless and defend the City, its officers, employees, agents and volunteers from any claims, lawsuits, costs, liability, damages or expenses, including costs of suit and fees and expenses for legal services, on account of any damages claimed by any reason to have occurred by reason of such removal. 4. To assure the promises herein contained, the Developer shall deliver to the City of Agreement for Early Issuance of Model Home Building Permits Tract No. 5935 Page 5 Fresno a Certificate of Deposit made payable only to the City of Fresno for the following amount: 16 Model Homes @ $1,000 per Model Home $16,000.00 This deposit may be used by the City to defray all or part of the costs and expenses of removal with any balance to be returned to the Developer. After the action by the City approving the Final Map and the recording of that Final Map, the deposit will be returned to the Developer. 5. Any costs and expenses of removal exceeding the above stated amount of security, which are stated in writing with a description of the Subject Property by an officer of the City, and recorded in the County Recorder's office, shall be a lien on the Subject Property and appurtenances running in favor of the City of Fresno. 6. The Developer has paid the fees and charges due as a condition of approval of this Agreement for the model homes as follows: SEWER CONNECTION CHARGE - Wastewater Facilities Charge 16 1 Lots @ 1 $2,119.00 1 per Lot $33,904.00 WATER CONNECTION CHARGE - Water Meter Charge 0 Lots @ $455.00 per Lot, 1-1/2" Meter $0.00 16 Lots @ $330.00 per Lot, 1" Meter $5,280.00 TOTAL FEES AND CHARGES DUE* $39,184.00 *Additional fees and charges required pursuant to the conditions of approval for the Tentative Map, shall be due and payable as a condition of final map approval. 7. The obligations of the Developer provided in this Agreement are joint and several. 8. This Agreement shall in no way be construed as a grant by the City of any rights to the Developer to trespass upon land rightfully in the possession of, or owned by, another, whether such land be privately or publicly owned. Agreement for Early Issuance of Model Home Building Permits Tract No. 5935 Page 6 9. No vested rights or entitlements are conferred by the issuance of this early construction permit or by acceptance of any improvements constructed thereunder. 10. Indemnification. To the furthest extent allowed by law, Developer shall indemnify, hold harmless and defend City and each of its officers, officials, employees,agents and volunteers from any and all loss, liability, fines, penalties,forfeitures, costs'and damages(whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage) incurred by City, Developer or any other person, and from any and all claims, demands and actions in law or equity (including attorney's fees and litigation expenses), arising or alleged to have arisen directly or indirectly out of performance of this Agreement or the performance of any or all work to be done in and upon the street rights-of-way in said Subject Property and upon the premises adjacent thereto pursuant to this Agreement. Developer's obligations under the preceding sentence shall apply regardless of whether Developer or any of its officers, officials, employees or agents are passively negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused by the active or sole negligence, or the willful misconduct, of City or any of its officers, officials, employees, agents or volunteers. If Developer should subcontract all or any portion of the work to be performed under this Agreement, Developer shall require each subcontractor to indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and volunteers in accordance with the terms of the preceding paragraph in this Section 9. Notwithstanding the preceding sentence, any subcontractor who is a "design professional" as defined in Section 2782.8 of the California Civil Code shall, in lieu of indemnity requirements set forth in the preceding paragraph of this Section 9, be required to indemnify, hold harmless and defend City and each of its officers, officials, employees, agency and volunteers to the furthest extent allowed by law, from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, Agreement for Early Issuance of Model Home Building Permits Tract No. 5935 Page 7 including but not limited to personal injury, death at any time and property damage), and from any and all claims, demands and actions in law or equity (including reasonable attorney's fees and litigation expenses) that arise out of, pertain to, or relate to the negligence, recklessness or willful misconduct of the design professional, its principals, officers, employees, agents or volunteers in the performance of this Agreement. The Developer further agrees that the use for any purpose and by any person of any and all of the streets and improvements hereinbefore specified, shall be at the sole and exclusive risk of the Developer at all times prior to final acceptance by the City of the completed street and other improvements thereon and therein. This section shall survive termination or expiration of this Agreement. 11. Insurance. Throughout the life of this Agreement, Developer shall pay for and maintain in full force and effect all policies of insurance described in this section with an insurance company(ies) either (i) admitted by the California Insurance Commissioner to do business in the State of California and rated not less than "A- VII" in Best's Insurance Rating Guide, or (ii) authorized by CITY'S Risk Manager. The following policies of insurance are required: a. COMMERCIAL GENERAL LIABILITY insurance which shall be at least as broad as the most current version of Insurance Services Office (ISO) Commercial General Liability Coverage Form CG 00 01 and shall include insurance for"bodily injury", "property damage" and "personal and advertising injury" with coverage for premises and operations (including the use of owned and non-owned equipment), products and completed operations, contractual liability(including indemnity obligations under this Agreement),with limits of liability of not less than $1,000,000 per occurrence for bodily injury and property damage, $1,000,000 per occurrence for personal and advertising injury and $1,000,000 aggregate for products and completed operations. b. COMMERCIAL AUTOMOBILE LIABILITY insurance which shall be at least as broad as the most current version of Insurance Services Office (ISO) Business Auto Coverage Form CA 00 01 and shall include coverage for all owned, hired, and non-owned automobiles or other licensed vehicles (Code 1-Any Auto), with combined single limits of liability of not less than $1,000,000 per accident for bodily injury and property damage. Agreement for Early Issuance of Model Home Building Permits Tract No. 5935 Page 8 C. PROFESSIONAL LIABILITY(Errors and Omissions) insurance appropriate to the respective person's profession (applicable only to those subcontractors who are providing Professional Services to the Developer), with limits of liability of not less than $1,000,000 per claim/occurrence and policy aggregate. d. WORKERS' COMPENSATION insurance as required under the California Labor Code. e. EMPLOYERS' LIABILITY with minimum limits of liability of not less than $1,000,000 each accident, $1,000,000 disease policy limit and $1,000,000 disease each employee. Developer shall be responsible for payment of any deductibles contained in any insurance policies required hereunder and Developer shall also be responsible for payment of any self- insured retentions. The above described policies of insurance shall be endorsed to provide an unrestricted 30 calendar day written notice in favor of City of policy cancellation of coverage, except for the Workers' Compensation policy which shall provide a 10 calendar day written notice of such cancellation of coverage. In the event any policies are due to expire during the term of this Agreement, Developer shall provide a new certificate evidencing renewal of such policy not less than 15 calendar days prior to the expiration date of the expiring policy(ies). Upon issuance by the insurer, broker, or agent of a notice of cancellation in coverage, Developer shall file with City a new certificate and all applicable endorsements for such policy(ies). The General Liability and Automobile Liability insurance policies shall be written on an occurrence form and shall name City, its officers, officials, agents, employees and volunteers as an additional insured. Such policy(ies) of insurance shall be endorsed so Developer's insurance shall be primary and no contribution shall be required of City. In the event claims made forms are used for any Professional Liability coverage, either (i) the policy(ies) shall be endorsed to provide not less than a 5 year discovery period, or (ii) the coverage shall be maintained for a minimum of Agreement for Early Issuance of Model Home Building Permits Tract No. 5935 Page 9 5 years following the termination of this Agreement and the requirements of this section relating to such coverage shall survive termination or expiration of this Agreement. Any Workers' Compensation insurance policy shall contain a waiver of subrogation as to City, its officers,officials, agents, employees and volunteers. Developer shall have furnished City with the certificate(s) and applicable endorsements for ALL required insurance prior to City's execution of the Agreement. Developer shall furnish City with copies of the actual policies upon the request of City's Risk Manager at any time during the life of the Agreement or any extension, and this requirement shall survive termination or expiration of this Agreement. The fact that insurance is obtained by Developer or his/her/it's subcontractors shall not be deemed to release or diminish the liability of Developer, or his/her/it's subcontractors including without limitation, liability under the indemnity provisions of this Agreement. The duty to indemnify City, its officers, officials, agents, employees and volunteers, shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Developer or his/her/it's subcontractors. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of Developer, its principals, officers, agents, employees, persons under the supervision of Developer, vendors, suppliers, invitees, subcontractors, consultants or anyone employed directly or indirectly by any of them. If at any time during the life of the Agreement or any extension, Developer fails to maintain the required insurance in full force and effect,the Directorof Planning and Development, or his/her designee, may order that the Developer, or its contractors or subcontractors, immediately discontinue any further work under this Agreement and take all necessary actions to secure the work site to insure that public health and safety is protected. All payments due or that become due to Developer shall be withheld until notice is received by City that the required insurance has been Agreement for Early Issuance of Model Home Building Permits Tract No. 5935 Page 10 restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to City. Any failure to maintain the required insurance shall be sufficient cause for City to terminate this Agreement. If Developer should subcontract all or any portion of the services to be performed under this Agreement, Developer shall require each subcontractor to provide insurance protection in favor of City, its officers, officials, employees, volunteers and agents in accordance with the terms of each of the preceding paragraphs, except that the subcontractors' certificates and endorsements shall be on file with Developer and City prior to the commencement of any work by the subcontractor. 12. The foregoing shall burden the Subject Property described and constitute a covenant running with the land in favor of and for the benefit of the City of Fresno and its property; be enforceable by the City by any legal or equitable means; and shall be binding upon the successor, assigns, transferees, and heirs of the Developer. In the event the City Council approves the Final Map of Tract No. 5901 and said Final Map is duly recorded, the foregoing deposit shall be returned to the Developer and this Agreement shall be of no further force and effect. 13. In the event that litigation is instituted to enforce or interpret any provision of this agreement, the parties agree that the prevailing party shall be paid reasonable attorney's fees, costs and litigation expenses. 14. Each party acknowledges that they have read and fully understand the contents of this Agreement. This Agreement represents the entire and integrated agreement between the parties with respect to the subject matter hereof and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be modified only by written instrument duly authorized and executed by both City and Developer. Agreement for Early Issuance of Model Home Building Permits Tract No. 5935 Page 11 Agreement for Early Issuance of Model Home Building Permits Tract No. 5935 Page 12 CITY OF FRESNO, DEVELOPER: a Municipal Corporation BN 5312 L.P., Planning and Development Department A California Limited Partnership Nick P. Yovino, Director By: BONADELLE HOMES, INC., a California Corporation, as General Partner By: By: 0 eith Bergthold, rector Johf A. Bonadelle, President APPROVED AS TO FORM: JAMES C. SANCHEZ City Attorney �J - r J W. Fox eputy City Attorney Date: 41 a c., (Attach Notary Acknowledgment) STATE OF CALIFORNIA, COUNTY OF Fresno On March 28, 2008 , before me, Anna M. Renna a Notary Public, personally appeared John A. Bonadelle who proved to me on the basis of satisfactory evidence to be the person(A whose name( is/.armsubscribed to the within instrument and acknowledged to me that he/� executed the same in his"ke�,&k authorized capacity(4es), and that by his/14o,. 4@if_ signature(A) on the instrument the person(, or the entity upon behalf of which the person($) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. (Notary seal or stamp) WITNESS my hand and official seal. Signature tA����� ANNA M.RENNA COMM.#1759837 -+ NOTARY PUKE-CALFMW FRESNO COM MY Cwm B#m ,2011 CLERK'S CERTIFICATION State of California ) County of Fresno ) On April 2, 2008 before me, Sherrie L. Badertscher, Deputy City Clerk, personally appeared, Keith Bergthold, Assistant Director of Planning and Development Department , who proved to me on the basis of satisfactory evidence, to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal REBECCA E. KLISCH, CMC City Clerk, City of Fresno By Deputy Agreement for Early Issuance of Model Home Building Permits Tract No. 5935 EXHIBIT A The land referred to herein below is situated in the County of Fresno, State of California and is described as Follows: Lot 47 of Eggers Colony, in the County of Fresno, State of California, according to the map thereof recorded in Volume 4, Page 60 of Plats, Fresno County Records. Together with that portion of abandoned Dakota Avenue, by order of abandonment by the Board of Supervisors of Fresno County recorded July 3, 1959 in Book 4243, Page 365, Official Records, as Document No. 47112. SUBORDINATION The undersigned as holder of the beneficial interest in and under that certain Deed of Trust recorded on in the office of the Fresno County Recorder as Document No. of which the Deed of Trust in by and between: as Trustor, as Trustee, and as Beneficiary, hereby expressly subordinates said Deed of Trust and its beneficial interest thereto to the foregoing Agreement For Early Issuance of Model Home Building Permits for Tract No. 5935, Phase 2 of Vesting Tentative Map No. 5901. DATED: , 20 I " BENEFICIARY By: By: (Beneficiary to print/type document information, Name, Title and attach Notary Acknowledgment)